Child pornography: Who should pay?

By Arjun SethiBy Arjun SethiJanuary 24, 2014

Arjun Sethi is a lawyer in Washington. He is on Twitter: @arjunsethi81.

At the ages of 8 and 9, a woman described in court documents as Amy Unknown was raped by her uncle and forever turned into a pornographic image. Now, more than 15 years later, her pictures are among the most widely disseminated child pornography in the world. There is a global market for her images, and they have been implicated in thousands of cases worldwide.

Amy experiences re-victimization because her abuse is perpetual. Many of her images will never be recovered, and closure seems unlikely, if not impossible. In her own words: “Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again.”

The Violence Against Women Act, passed in 1994, entitles Amy to recover the costs of her medical services, lost income, attorney’s fees and the like. Her damages are estimated to be $3.4 million.

On Wednesday, the Supreme Court heard the appeal of Doyle Paroline. The Texas resident was arrested for downloading hundreds of illicit images, including two of Amy. Citing the principle of joint and several liability, the U.S. Court of Appeals for the 5th Circuit ordered Paroline to pay Amy the $3.4 million while giving him the right to seek contributions from others. The arrangement is comparable to a toxic tort: If multiple companies contaminate a water supply, many states permit a plaintiff to sue a single culprit, who can then chase after the others.

Paroline contends that he didn’t cause Amy harm and that his connection to her plight — a mere two images — is too attenuated. He argues that Amy’s uncle, who has little to his name, and those who disseminated her images are fully liable.

The government has staked out a middle ground. It contends that Paroline should contribute a fair and proportional share to Amy’s recovery — without specifying how much that should be. That determination, it suggests, is best left to individual judges.

The Supreme Court should stand by the opinion of the 5th Circuit and affirm the principle of joint and several liability.

The marketplace for child pornography is singular and indivisible. Producers, distributors and possessors of pornographic materials are each responsible for the advent and growth of the industry. None can exist without the others, and none should escape liability by blaming the others.

Nor should victims be deprived of a full recovery because some offenders are penniless and others are not. If the producers and distributors are insolvent but the downloaders are not, shouldn’t victims be able to recover their losses?

Consider an example offered by Amy’s counsel: gang rape. If three defendants commit the crime, the victim shouldn’t be required to prove the harm caused by each defendant. Rather, each defendant should be jointly and severally liable for the victim’s loss and then have the right to seek contribution from the others. Likewise, if two of the three defendants are insolvent, the victim should be permitted to seek full recovery from the solvent defendant.

Such an approach is consistent with how victims of child pornography experience trauma. Psychologists have repeatedly found that victims experience trauma as one event; they don’t distinguish each crime committed. Requiring victims to prove the direct harm that flows from each wrongful act — production, distribution and possession — is an impossible task.

The government’s recommendation of a proportional allocation is equally unworkable. Child sex offenders reside in many jurisdictions nationwide and abroad, and they are apprehended at different times. The majority of offenders — more than 90 percent, by some estimates — are never found. How then could a single court fairly and equitably allocate loss?

Any such attempt would be glaringly arbitrary and would force victims like Amy into protracted litigation involving countless defendants. It would also require her to relive and explain her suffering every time a new offender is found. Chasing down offenders and seeking payment should be the right of the wrongdoer, not the responsibility of the victim.

Even supporters of the 1994 legislation have clarified that individual offenders such as Paroline were always meant to be on the hook for the entirety of a victim’s loss. In a brief submitted to the court, a bipartisan group of U.S. senators cite Joe Biden, the chief drafter of the bill, who described it as the most victim-friendly legislation the Senate ever passed.

Child pornography is a growing international scourge. Demand has increased, as have the number of victims and the cruelty of the crimes. Anonymous online sharing has exacerbated the problem, rendering the industry more opaque and prosecution more elusive. The victims of this sordid market need assistance, not legal machinations that impede recovery.